The Ontario Marijuana Laws Ruling

An Ontario Superior Court judgment yesterday has struck down Canada's marijuana laws:

[Justice] Taliano declared the [federal medical marijuana] program to be invalid, as well as the criminal laws prohibiting possession and production of cannabis. He suspended his ruling for three months, giving Ottawa until mid-July to fix the program or face the prospect of effectively legalizing possession and production of cannabis.

What makes this ruling interesting is that most previous constitutional challenges to the Criminal Code provisions concerning possession/production of marijuana have emanated from the concept that criminal laws restricting its sale and use violate the principles of fundamental justice on the grounds that marijuana use does no harm to society or other people, and therefore criminal punishment for its use infringed individual s.7 rights to liberty under the Charter of Rights and Freedoms since a criminal law that is shown to be arbitrary or irrational will infringe s.7.

However, the courts have not been particularly impressed with this line of argument, as exemplified in R. v. Malmo-Levine, where the Supreme Court stated that marijuana can alter mental function and can lead to health risks as a result of its use, and that simply because Parliament has chosen to criminalize marijuana use and not criminalize tobacco or alcohol as well doesn't make the criminalization of marijuana arbitrary or irrational, as Parliament can pursue its public health goals at its own discretion.

What sets this case apart, interestingly, is the federal medical marijuana regime. The defendant in this case, Matthew Mernagh, used marijuana to treat his chronic pain resulting from a number of ailments, but could not find a doctor willing to help him apply for a medical marijuana license, so he grew his own and was arrested for it. Mernagh also presented a number of witnesses from across the country who testified to similar experiences in their inability to get medical licenses for marijuana use.

Justice Taliano stated that if legitimately sick people cannot access needed medical marijuana through legal means, that criminal punishment for them seeking marijuana through illegal channels cannot be proper. (Without having access to the decision itself, this seems to suggest that Justice Taliano found a criminal law that is applicable for the pursuit of legal activity to be an irrational or arbitrary one.) This is worth noting as it seems to flow from the Supreme Court's ruling in Chaoulli v. Quebec, and particularly, the assertions of Chief Justice Mclachlin and Justice Major that where the government puts a scheme in place to provide health care, that it must comply with the Charter in doing so.

Unlike in Malmo-Levine and previous marijuana challenges, however, due to the way this case was reasoned it seems likely that remedies exist to the federal government beyond simple legalization of marijuana: a different medical marijuana license application process, for example, or the government undertaking to provide doctors greater education on the benefits of marijuana as a prescription medicine and when it is appropriate to prescribe. Alternately, the government could simply decide that medical marijuana isn't a policy goal it wishes to pursue any further and discontinue the medical marijuana program entirely, and effectively reinstate those laws criminalizing marijuana possession and production.

Although this would be a harsh answer to the justice's concerns, it would likely comply with both the Charter and case law on the issue.

- Christopher Bird, Toronto

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